Obama's Curtain Call: A Look Back On A Legacy Of Executive Overreach

It has been less than a month since President-elect Trump shocked the nation by winning the presidency. In that time, those on the left have shifted their sights from expanding big government programs to preserving the legacy left by President Obama — all while worrying about the possibility of executive overreach during the next administration.

This new-found concern for executive power is ironic given that the Obama administration’s signature move has been aggressively to sidestep the democratic process.

President Obama has been unapologetic about his unprecedented use of executive power, and of course, that robust view of the executive’s prerogative does not occur in a vacuum but creates an important precedent.

“The New York Times” acknowledged as much prior to the election noting that Obama’s pursuit of “executive power without apology … will shape the presidency for decades to come.”

President Obama’s Evolution on Executive Power

As a candidate, President Obama expressed misgivings about executive power. After the 2010 mid-term elections, however, it became clear that Congress would not go along with the president’s sweeping regulatory agenda. So he pledged: “Where they won’t act, I will.”

He vowed to pursue “audacious” executive action in his final term. And in his January 2014 State of the Union Address, President Obama promisedto “wherever and whenever” possible “take steps without legislation.”

President Obama made good on these promises; his use of Executive Orders, Executive Agreements, Agency Guidance, and Agency Rulemaking unilaterally to change domestic policy is unparalleled in modern times. Indeed, according to “The New York Times,” President Obama’s two terms have been characterized by “bureaucratic bulldozing, rather than legislative transparency.”

All of this is quite remarkable given that the Constitution vests the power to make law with Congress, not the president, as President Obama, once a lecturer in constitutional law, well knows.

In his first term, for example, he told immigration activists who were pressing for unilateral action that he did not have the authority to “waive away the law Congress put in place.” Fast forward a few years, and the Department of Homeland Security (DHS) had located the power to confer “lawful status” on at least 4.3 million illegal aliens — a measure specifically rejected by Congress.

Obama acknowledged that the DHS guidance was intended to “change the law.” In preventing the guidance from going into effect, a federal district court agreed, finding that President Obama “is not just rewriting the laws, he is creating them from scratch.”

The Supreme Court was concerned, too. In deciding to review the case, the court took the highly unusual step of adding a question, asking whether the DHS Guidance violated the Take Care Clause of the Constitution, which requires that the president “take Care that the Laws be faithfully executed.”

In adding this question, the Supreme Court signaled its concern that the president may have gone beyond his duty to execute the law.

Similarly, during Obama’s first term, administration officials indicated that they did not have the power independently to raise the minimum wage or increase benefits for federal contract workers. Then, in Feb. 2014, President Obama signed Executive Order 13658, which raised the minimum wage for hundreds of thousands of federal contract workers.

His administration subsequently increased workplace benefits and protections for all workers at companies that held federal contracts—roughly 29 million individuals.

President Obama’s unilateral joining of the Paris Accord is particularly audacious. There are generally two types of international agreements — treaties, which must be ratified by the Senate, and Executive Agreements, which do not.

Senate ratification is required when agreements legally bind the United States to action or to a financial commitment. Thus, the best that can be said for the Paris Accord is that it is a nonbinding, executive agreement.

Even then, it’s not clear that the president has the authority unilaterally to join the United States to this particular “nonbinding” international agreement. That authority must have a constitutional foundation.

The secretary of State’s website describes “three constitutional bases” for international agreements that are not treaties.

First, a prior treaty may authorize the president to act unilaterally.

Second, the president may conclude an international agreement based on existing legislation enacted by Congress.

And third, the president may join international agreements based on his foreign affairs power; authority to receive ambassadors; authority as commander in chief; or the president’s duty to take care that the laws are faithfully executed.

Because none of these sources of constitutional authority apply here, it’s not clear President Obama possesses the authority to join the United States to the Paris Accord, even when the administration insists it is merely hortatory.

More examples abound. After Cap and Trade legislation failed to pass Congress, President Obama decided to pursue climate change regulation. Enter the Clean Power Plan. In order to “transform the domestic energy industry” administrators relied upon an obscure provision of the Clean Air Act of 1972 — one that regulates individual power plants.

Harvard Law Professor Larry Tribe, who once mentored President Obama and argued on behalf of Al Gore in Bush v. Gore, called the Clean Power Plan a “power grab” that, among other things, usurped the authority of Congress to make the law.

“Burning the Constitution,” he writes, “should not become part of our national energy policy.”

The list continues. The Obama administration issued 560 major regulations in its first 7 years, nearly 50 percent more than the Bush administration during the same time frame, and regulations and executive orders continue to be pushed through the administration post-election.

The Way It’s Supposed to Be

Reasonable people can and do disagree over immigration criteria and procedure, energy policy, and minimum wage laws, which is why we have elections and a Congress made up of the people’s representatives to debate, create, and reform those laws.

Obama’s legacy is not so much about his particular position on any of these issues, but rather it is about something much more fundamental — pervasive and unprecedented executive overreach.

Central to the Framers’ protection of individual liberty was a system of checks and balances. Our Constitution divides government among three co-equal branches of government. This division was meant to protect liberty by making it more difficult to abuse governmental power.

President Obama eroded those distinctions, leaving a fundamentally different system in which it is now the habit of the president to make sweeping changes to law without Congress.

What Should Conservatives Hope For?

If anything is clear from the election, it is that the American people are looking for something other than big-government-as-usual. They want a restoration of the rule of law and the founding principles of our country.

President-elect Trump has the opportunity to deliver on that vision by reversing the Obama administration’s overreaches. Conservatives should applaud his efforts to rescind unilateral executive and agency action undertaken by the prior administration.

Some of his efforts can be immediate and decisive: President-elect Trump, for example, can undo President Obama’s Executive Orders on day one. Others, such as those that have gone through formal agency rulemaking processes, will be more complicated and take more time.

But there is even more at stake than reversing the Obama administration’s rule by Executive fiat. President Obama has created a dangerous roadmap for the future: “To sidestep Congress,” “The New York Times” wrote pre-election, future presidents “have the legacy of Obama.”

President-elect Trump should reject this invitation to continue to govern without Congress.

As his transition team works out how to roll-back the pervasive domestic agenda imposed on America without Congress, it’s not just about changing policy. It’s about returning to the Founder’s vision of a divided and accountable government.

It’s about restoring the system of constitutional checks and balances that preserve and protect individual liberty.

The top priority must be preserving constitutional democracy for future generations — regardless of which party is in power.

Erin Hawley is a legal fellow at the Independent Women's Forum, an associate professor of law at the University of Missouri, and a former clerk to Chief Justice John G. Roberts Jr.

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Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​